Jan. 13, Edmonton, AB – In Reasons for Judgment released on January 11, 2010, Mr. Justice R.
Paul Belzil of the Alberta Court of Queen’s Bench denied certification of the
class action launched against the Alberta
College and Association
of Chiropractors (ACAC).
ACAC
was very competently represented by legal counsel from the firm Branch MacMaster:
Jim MacMaster, Ward Branch, and Don Lebans. ACAC was victorious on every issue.
Justice Belzil found the proposed class action against
ACAC to be unworkable on all aspects of the legal test for certification. The decision
is significant not only for ACAC and chiropractors in Alberta but for all Canadian professional regulatory
bodies and the professionals they regulate.
No
private law duty of care
Most
importantly, Justice Belzil determined that that it was “plain and obvious”
that there was not a “cause of action”
against ACAC which means there was no valid
legal basis for suing ACAC.
In
coming to this determination, Justice Belzil confirmed that, under the Alberta Health
Professions Act, ACAC’s responsibility in governing the
chiropractic profession is to the public as a whole, and not to any individual
patient. He also noted the total absence of any dealings between ACAC and those
suing which might otherwise have given rise to a duty to be mindful of their
personal interests.
Further
Justice Belzil found that making a health care regulator such as ACACresponsible
for individual patients was contrary to ACAC’s public protection
mandate and the policy decisions ACAC must make in fulfilling that mandate:
As
noted, the [Health Profession Act] established legislative authority over
chiropractic
within the Province, which must necessarily involve policy decisions.
Imposing
private law duties of care on regulators would interfere with their
ability
to make decisions considering the needs of the public at large.
The
decision reinforces the general principle that the potential for liability of professional
regulatory bodies should be quite limited.
Courts
are not the proper forum to settle scientific disputes
Justice
Belzil refused to recognize a cause of action in relation to the allegation
that the practice of chiropractic is based on a flawed scientific foundation.
Citing
legal precedent including other cases involving chiropractic institutions (Lewis
v. Emmanuele and Corvaro v. Canadian
Memorial Chiropractic College) where the attempt to attack
the scientific foundation of chiropractic was unsuccessful, Justice Belzil
found that this allegation was “nothing more than an attempt to resolve a
scientific dispute in a court of law, and would also amount to an attack on the
legislative competence of the Province in enacting the HPA.”
This
decision serves as additional strong support for the principle that courts are
not the proper forum to settle scientific disputes.
Other
criteria for certification not satisfied
Justice
Belzil also concluded that there was a failure, on the part of the plaintiffs
to define a class of people who were similarly affected by any actions of ACAC,
calling their proposed definition “too vague and thus unworkable”. In a similar
vein, he denied the existence of any issues that were common to all of the
people the plaintiffs had hoped would fit within that definition, noting the
inherent individuality of chiropractic care, including the different types and duration
of treatment that may be provided, the varying techniques that can be used in providing
those treatments, and the individualized information communicated to the patient.
Justice
Belzil found that a class proceeding was not the preferable procedure.
He
also expressed a concern as to whether the individuals who had requested the
class action were not appropriate representative plaintiffs.
Summary
The
attempt to certify a class action against ACAC in relation to its regulation of
chiropractic
and against all individual chiropractors in Alberta for alleged inappropriate and non-beneficial
treatment has been defeated. ACAC will monitor the action to see if an appeal
is taken. The plaintiffs did not appeal the July 2009 decision which dismissed their
claim as against the Alberta
government.
This
is an important victory for regulatory bodies and the chiropractic profession.
At the general level, the judgment reinforces that regulatory bodies do not owe
a specific private law duty of care to individuals except in exceptional circumstances.
Furthermore,
the judgment supports the theme that it is not appropriate to attack the scientific
validity of chiropractic in the courts. This decision will help to limit the
legal options of the anti-chiropractic lobby.
Source, ACAC
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